Equal Employment Opportunity Commission, Applicant-Appellee v. The Cherokee Nation

whole, utterly as a Taken evidence suggest

fails to an insane delusion. In-

stead, question the clauses in evince a clear preclude possible

intent to claim Lone pretermitted

Elk as a men- child. He is specifically

tioned in the will but is not child,

acknowledged anyone aas so claim- $5.00,

ing given is that. The

Secretary’s every step conclusions

against weight the clear of the evidence.

Furthermore, it is in law to find erroneous nothing

an insane delusion from but the

contradiction a finding paterni- between testamentary language commonly preclude pretermitted

used heir claim.

AFFIRMED IN PART AND RE-

VERSED IN PART AND REMANDED

WITH INSTRUCTIONS THE TO SECRE-

TARY TO APPROVE THE WILL. Wilcoxen,

James G. Wileoxen & Wilcox- en, Okl., Muskogee, for respondent-appel- EQUAL EMPLOYMENT OPPORTUNI lant. COMMISSION, TY Applicant-Appellee, Suhre, (Charles Shanor, Atty. John F. A. Counsel, Gwendolyn Young Reams, Gen. Counsel, Fink, Associate Gen. Vella M. NATION, The CHEROKEE Counsel, brief), Asst. Gen. with him on the Respondent-Appellant. E.E.O.C., D.C., Washington, for applicant- No. 88-2092. appellee. United Appeals, McKAY, LOGAN, Before Tenth Circuit. TACHA, Judges. Circuit

March McKAY, Judge. Circuit

I. At jurisdictional issue this case is the authority Equal Employment of the Oppor- tunity (EEOC) Commission over the Chero- pursuant kee Nation amended, U.S.C.

dispute precipitated by EEOC’s at- tempt judicially to enforce administra- subpoena directing tive tecum duces Cherokee Nation to produce documents of employees. several former tribal The sub- poena part was issued as of an EEOC in self-government recognized eignty and age discrimination investigation of treaty.” the Id. Mrs. Louise by complainant, charge filed Di- Gossett, Nation’s against the Cherokee holding in Na- basis for our This second Human Services. rector of Health and treaty-protected vajo Forest Products —the at is- right self-government likewise of resisted the Nation —is The Cherokee treaty’s us.2 The in the case before sue maintaining authority, EEOC’s assertion recog- clearly unequivocally immunity precluded that tribal only two nizes tribal congres- specific absent jurisdiction EEOC exceptions, neither of which is express bring tribes under to sional intent the issue in this case. We believe the court examined coverage. The district reasoning Navajo Products is VII prototype and its —Title equally to the case at Con- applicable bar. amended, 42 Rights Act Civil appli- sequently, that ADEA is not we hold 2000e(b) (1982) concluded U.S.C. —and would direct- cable because its enforcement led statutory construction principles Nation’s ly interfere with Cherokee Congress intended to the conclusion self-government.3 treaty-protected right of Indian tribes.1 ADEA to to entitled to have Therefore the EEOC was III. subpoena enforced. its administrative Court, Supreme we have

Like congres “extremely reluctant to find been II. treaty rights” abrogation sional absent explicit statutory language. Navajo Forest Products See United In Donovan v. (10th Cir.1982) Indus., we v. 692 F.2d 709 OSHA, general appli- 90 L.Ed.2d 767 We are a statute of held applicable mindful that we should not “construe cability, was nevertheless not to also treaty abrogating rights enterprise operating in the statutes as a tribal business First, way’; explic because ‘backhanded the absence reservation for two reasons: statement, abrogate treaty provi- ‘the intention to or enforcement would violate it its right modify treaty lightly imputed is not to recognized which to be sions tribe’s Congress.’ treaty rights are from tribal lands. 692 to the Indian exclude non-Indians Second, easily to be cast aside.” F.2d at 712. because enforcement too fundamental omitted). (citations principles of sover- “would dilute the (1960), question support as a 1. The district court’s determination is a to its claim that law, applicability, applies which we review de novo. Matter general all statute of Inc., (10th Equip., Tri-State 792 F.2d including argument persons Indians. This 1986). Cir. inapposite since it is well established that applicable to trea so-called Tuscarora rule is not Echota, Treaty V New Decem- 2. Article of the See, e.g., Phillips cases such as this one. 478, provides pertinent ber Co. v. United States Environmental Petroleum part: Agency, Protection 803 F.2d Cir. hereby agree The United States covenant and 1986) (The Tuscarora "rule of construction can right secure CherokeeNation [to] specific right be rescinded where tribe raises carry their councils make and national under a ... which is in conflict with they may into necessary all such laws as deem effect general applied....’’); v. law to be Donovan government protection Farm, Coeur d’Alene Tribal (9th 751 F.2d persons property within their own 1985) (Although represents Cir. Tuscarora country belonging people per- their rule, them; general exception is an “the there sons as have connected themselves with provided always they application shall not be incon- ‘abro of the law to the tribe would ’’). rights guaranteed by sistent with the constitution of the United gate Indian treaties.’ fact, States and such acts of as have been questioned Forest Products we may regulating passed be trade intercourse continuing vitality of the Tuscarora dictum with the Indians.... of the Court's decision in Mer (emphasis Tribe, rion Jicarilla (1982). 692 F.2d at 3. The EEOC relies on the broad dictum in Feder 712-13. Nation, al Power Comm'n v. Indian Tuscarora carefully opinion, reasoned the dis- the ADEA’s respect silence with to Indi attempted congres- trict court to determine ans), and there is no clear indication of by comparing sional intent the statute on congressional modeled, which ADEA was which sovereignty (as manifested, e.g., by provides express exclusion of tribes or the history, existence of a coverage, statute’s with the comprehensive statutory plan), the court is completely which is silent on the to apply special canons of construction subject.4 applied The court then normal to the benefit of Indian interests. Mer Cf. holding. rules of construction to reach its rion, 11, 455 U.S. at n. 102 S.Ct. at (“Because While normal rules of 906-08 n. 11 construction the Tribe retains all suggest would the outcome which the dis inherent attributes sovereignty adopted, trict court the court overlooked have not been divested the Federal the fact that normal rules of construction Government, proper inference from si do apply treaty rights, not when Indian lence the Tribe’s [in is that Constitution] nontreaty Indians, even matters involving sovereign power to tax remains in See, are at issue. e.g., Montana v. Black tact.”). that, ease, We conclude this Tribe, 759, 766, 471 U.S. 105 S.Ct. feet bases for inferring congressional 2399, 2403, (1985) (“[S]ta 85 L.Ed.2d 753 were not so clear as to overcome the bur liberally tutes to be construed in favor den which the required EEOC was to carry. Indians, ambiguous provisions with REVERSED. interpreted benefit.”); to their County of Nation, v. Oneida Oneida Indian 470 U.S. 247, 105 S.Ct. TACHA, Judge, dissenting. Circuit (1985) (“[T]he 169 canons of construction Because I believe there is clear indi- applicable in Indian law are rooted in the cation of intent to

unique trust relationship between the Unit Employment Discrimination in Act of Thus, ed States and the Indians. it is well (ADEA) tribes, respectful- Indian I established that treaties should be con ly dissent. liberally Indians, strued favor of the possess Indian ambiguous powers tribes inherent interpreted sovereignty predate their applied coming benefit.... The Court similar Europeans canons nontreaty construction this continent. See United matters.”); Wheeler, Merrion v. Apache Jicarilla 322-23, States v. 435 U.S. Tribe, 130, 152, 1079, 1085-86, S.Ct. (1978). 55 L.Ed.2d 303 (“[I]f L.Ed.2d 21 there ambi incorporation [is] Their territory within guity tribe, the doubt would benefit the States, acceptance United their ‘ambiguities in federal law have been however, protection, “necessarily divest- generously construed comport order to ed aspects them of some sover- [that] with ... traditional of sovereignty notions eignty.” Id. at 98 S.Ct. at 1086. In and with policy the federal encouraging implicit addition to the divestment of sover- ”) independence.’ (quoting White eign powers by dependence of tribal virtue Bracker, Mountain Tribe v. 448 upon other sovereign 136, 143-44, 2578, 2583-84, U.S. 100 S.Ct. powers explicitly yielded by were treaties (1980)). Congress. removed unequivocal

We believe that Supreme S.Ct. at 1085-86. “The Indian tribes [how- precedent dictates that aspects cases retain all sovereign- of tribal ever] (such ambiguity posed where exists as that specifically not withdrawn.” Donovan expressly of the ADEA neither "employer”. Age definition of 4. nor includes age. excludes Indian tribes from cover- Act of contrast, 11(b), However, has shown that it § Congress in 1974 Act, coverage knows how to extend the ADEA's explicitly amended the this time original it chooses to do so. The including version of the coverage. states in the Act’s See 29 expressly 630(b). excluded states from the Act’s U.S.C. § statutory language.” Majority Indus., explicit F.2d Prods. v. Cir.1982). v. (quoting States opinion at 938 United tribes sovereignty that (1986)). limited charac- unique and retain is of a only moreover, at the sufferance Court, It exists that “Con- ter. has stated complete de- subject to Congress and is gress’ intention acts, But until feasance. plain.” be clear and United [must] existing retain their tribes Dion, 476 pos- sum, still powers. L.Ed.2d 767 sovereignty not aspects of sess those interprets the majority apparently statute, by treaty or withdrawn require language of Dion to “clear intent” necessary result of their implication as a applying explicit language the statute dependent status. the stat- either on the face of Wheeler, 98 S.Ct. at 1086. at U.S. history.1 my In ute or recognize the United States The laws of restrictively as cannot be read view Dion immunity from suit and both suggests. majority as the aspects of the tribal that stated Court by Indian sovereignty retained inherent ... different standards it has “enunciated Pueblo v. Mar- Santa Clara tribes. See a determining how such 49, 58-60, years over the tinez, 98 S.Ct. 436 U.S. (1978); plain must be demonstrat- see also clear and intent Bracker, Tribe v. Al- at 2220. White Mountain ed.” Id. at 136, 142-43, 2582- “[e]xplicit by Con- though an statement Both of these purpose of en- gress preferable for the however, sovereignty, aspects of accountability,” suring legislative by treaty, are not established whether or interpreted “rigidly that has not plenary control “subject superior and (em- per rule.” Id. preference ... as a se Martinez, 436 U.S. at Congress.” of phasis 1676-77; Bracker, 448 also S.Ct. at see congressional in- the evidence of [W]here 2583. “The United at 100 S.Ct. at U.S. sufficiently compel- abrogate is tent to power legislative plenary retains weight authority indicates ling, “the any attributes divest Indian tribes of by a intent can also be found that such Prods., 692 sovereignty.” Navajo Forest reviewing from clear and reliable court in this case is at 714. The issue F.2d legislative history of a in the evidence ADEA, Congress whether, by enacting the is clear evi- statute.” What is essential power to divest the Chero- has exercised its Congress actually considered that dence aspects of tribal sover- kee Nation action between its intended the conflict eignty here claimed. treaty on the one hand and Congress has ex- determining whether other, chose to resolve rights on the power, proper respect both ercised such “a treaty. by abrogating the that conflict sovereignty itself and for the for tribal (citation at 106 S.Ct. at Congress cautions authority of plenary Cohen, omitted) F. Handbook (quoting lightly in the absence of clear that we tread (1982)); Mar- Law 223 see Federal Indian legislative intent.” Mar- indications tinez, at 98 S.Ct. at tinez, 1677-78. 98 S.Ct. at “leg- (“structure statutory scheme” majority notes that the courts have “ history” support did not “intrusion islative congres- ‘extremely to find been reluctant sovereignty”). abrogation treaty rights’ absent into tribal sional ADEA, why either alone it show Although majority parenthetically notes fails to legisla- rights congressional conjunction with other civil or in requi- VII, with the comprehen- could be manifested as Title is not such tion such clarity through "compre- the enactment of site plan. sive statutory plan," majority opinion at hensive majority finds that the provi- instrumentality of a political State or a ambiguous they sions are because State, neither subdivision of a any interstate expressly include nor exclude Indian tribes agency, but such term does not include coverage. Majority opinion at 939 or a corporation whol- majority any analysis n. 4. The dismisses ly the Government of the Unit- Title VII in its review of the ADEA and ed States. ambiguous therefore holds provi- 630(b). U.S.C. § utilized a sions of the must be construed to similar VII, definition in Title which was the benefit of the Indians since there is no enacted prior except that contrary indication of intent. expressly definition excludes “an Indian opinion Majority at 938-39. I am con- tribe” from qualifying as employer vinced, however, discerning legis- purposes of Title VII. See U.S.C. lative intent behind the relevant 2000e(b). of the ADEA requires here comparison interpreting statute, When Congress’ with the corresponding provisions expressed intent as in that statute is deter the fact minative. In discerning intent, “we clearly upon aware of and relied Title presume must Congress acts with de provisions VII’s promulgating when liberation, inadvertence, rather than by making ADEA.2 In such a comparison it when it drafts a statute.” United States becomes any impingement clear upon Motamedi, 1403, 767 F.2d 1406 Cir. by tribal sovereignty enforcement of the 1985). Because Title VII and the ADEA ADEA by Congress. was intended purpose devoted common pro begin by examining I the ADEA’s defini- scribing employment discrimination, and “employer” tion of purposes of the Act: the ADEA’s employer definition of pat term “employer” person The means a VII, terned after the in definition Title engaged in industry an affecting com- those definitional should be con merce who twenty has or more employ- pari strued in materia. Kennedy v. Cf. working ees for each day Whitehurst, in each (D.C.Cir. 690 F.2d 956-57 twenty or 1982) more calendar weeks in the (pointing to indications that preceding current or year: calendar Pro- ADEA’s provision enforcement for federal vided, prior 30, 1968, That to June employment em- discrimination should be read ployers having fifty employ- fewer than pari VII). in Further, materia with Title ees shall not employers. be considered Congress explicitly enumerates cer (1) The term any also means agent exceptions tain statutory scheme, to a we person, (2) may and State or political imply not exceptions additional with subdivision of any agency a State and legislative out evidence of intent to do so. bating There is much problem evidence to indicate Con- Rights if it existed. Civil 2. Act gress 88-352, pro- had an acute awareness of Title VII’s § promulgating During visions when (superseded by Equal Employment ADEA. Oppor- 265 consideration of tunity Title VII there were unsuccess- § Act No. Pub.L. age 103, 111). ful protected efforts to Secretary’s report include as one of the Stat. The led to the categories legislation. Kalet, Cong.Rec. in that Age enactment of the ADEA. See J. Dis- (1964) (amendment age (1986). to Employment as include in Law 1-2 crimination protected category by under Title VII offered have noted Commentators that the ADEA is ef- Dowdy; Rep. rejected by fectively hybrid general amendment vote of 94 of Title VII’s scheme 123); 9911-16, 13,490-92 Cong.Rec. to and the Fair Labor Act’s remedial Standards (amendment Kalet, age protected catego- to Age include devices. J. Discrimination in Em- ry Smathers; ployment under Title generally Eglit, Age VII offered Sen. Law 1-3. See 2 H. 63); rejected by amendment vote of 28 to see 16.01 "Because Title Wyoming, already also EEOC v. VII had established a within framework (1983) (noting S.Ct. employment which ban on discrimination enforced, age that amendments to include in VII could Title be Title VII enforcement rejected). proof were provision VII Title instead scheme included and were followed considerations Secretary directing extensively Kalet, drafting to Labor in the the ADEA.” J. study potential age discrimination in the work- Discrimination in Law place and to make recommendations corn- decision, part, Co., majority bases Glover Constr. Andrus v. See Prods., 709, in 692 F.2d Navajo Forest on Occupational Safety (1980). Finally, we must be we held that which L.Ed.2d 548 (OSHA) is a remedial stat did not Health Act that the mindful liberally con operated be should therefore Indian tribal business ute and Navajo its beneficiaries. See Reserva- Navajo in favor tribe on strued Evans, Co. v. be Mayer application & would Oscar tion because its Navajo treaty rights. Ma- derogation of J., concurring). (Blackmun, jority opinion at 937-39. That case is employer apposite. The definition not in the employer definition of patterned after the is not utilized OSHA of em- the definition patterned after definition, VII important ex- in Title ployer nothing leg- in OSHA’s found Products we explicitly excludes Title VII ception that history to conclude islative definition.3 from the Indian tribes sovereignty. intended tribe exclusion omission of Prods., F.2d at 712. congres- Navajo Forest the clear provisions, see on Title VIPs sional reliance history sup- My review of the in- supra note evidences any on limitations ports the conclusion to include of the statute on the face tent right the Cherokees’ employer definition of in the pro- by Congress when were intended here the ADEA. purposes of for the ADEA. I would hold that mulgating the exceptions to carefully enumerated jurisdiction over Indian the EEOC has I find no basis coverage, and enforcing the ADEA purposes of tribes for tribes. for Indian imply exception a further in this case is subpoena issued and that Furthermore, has rec- Supreme Court I, therefore, respectfully dis- enforceable. purpose for the is some ognized that there sent. from the defini- of Indian exclusion tribes Title VII—to enable employer under tion of preference give to be free

Indian tribes employ- government in tribal

to Indians Mancari, 417

ment. Morton 13,701-03 (1964)

(1974); Cong.Rec. see 110 regarding

(comments Mundt by Sen. tribes from

amendment to exclude VII). I find no com-

compliance with Title out Congress to carve reason for

parable under for exception

ADEA. Rights Pub.L. No. Civil Act employer in the ADEA as

3. The definition added). 701(b), (emphasis origi- Stat. § verbatim from enacted is taken almost 11(b) § relevant lan- The relevant VII. The nal definition 701(b) originally originally VII as reads: guage of Title ADEA as enacted from § person "employer” a en- means The term enacted reads: affecting industry who gaged commerce in an person "employer" en- means The term twenty-five employees each or has more affecting industry commerce who gaged in an twenty calen- working day or more in each of twenty-five employees each or more preceding current or calen- dar weeks in the twenty working day or more calen- each not include year term does dar ... but such preceding calen- weeks in the dar current States, wholly corporation owned the United person, year, any agent but of such dar States, or a the United the Government the United term does not include political States, State or subdivision wholly corporation thereof. Act of an Indian Government of 11(b), Stat. tribe, there- political subdivision or a State (emphasis of....

Case Details

Case Name: Equal Employment Opportunity Commission, Applicant-Appellee v. The Cherokee Nation

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 28, 1989

Citation: 871 F.2d 937

Docket Number: 88-2092

Court Abbreviation: 10th Cir.